Update on Civil Procedure

Introduction

The High Court Rules came into force on 1 January 1986 . Among the aims of the Rules Committee were that the new procedures would:

be simple, clear and flexible;

move away from the “close to the chest” approach to litigation and avoid surprise tactics;

encourage greater judicial involvement (particularly in conferences and directions) for the efficient conduct of pre-trial work and of the trial itself; and

provide a mechanism, through procedures like summary judgment, for the speedy determination of proceedings.

The Rules Committee in 1986 acknowledged that its work was not completed when the new rules came into force. Since that time there has been a systematic and ongoing review to seek further improvements. So, for example, in 1996, rules relating to the exchange of witnesses’ statements were introduced. Most recently, there have been major changes to the rules relating to costs which came into effect as from 1 January 2000. A primary purpose of this seminar is to focus on the new costs rules.

Another intention of the Rules Committee in 1986 was to bring within the High Court Rules regime other rules relating to various court proceedings. So in 1988, Part IXA was inserted into the Rules, and over the years so too have rules relating to patents, the reciprocal enforcement of judgments, procedures in admiralty and constituency election proceedings. Most recently, new rules relating to insolvency have been introduced with effect as from 1 March 2000. Another purpose of this seminar is to focus on the new insolvency rules.

One of the most important developments in recent years has been the introduction of case management to litigation in the High Court. Reference has already been made to the new rules relating to the exchange of witnesses’ statements. Another purpose of the seminar will be to examine the introduction of case management throughout the country following on from pilot programmes which were instituted some years ago.

All the changes introduced by the Rules, and subsequent refinements and innovations, have as their object the more efficient and just resolution of civil disputes (see r 4). The greater influence of procedure in dispute resolution which the Rules are designed to achieve is nowhere better stated than by Sir Jack Jacob in the 1986 Hamlyn lecture, “The Fabric of English Civil Justice”:

It is by operating the machinery of civil justice that … proceedings are brought before the Court and it is in such proceedings that the law is determined and applied. When in a seminal maxim Sir Maurice Amos postulated that, “Procedure lies at the heart of the law”, he was in fact proclaiming the supremacy of procedure; and perhaps the true relation between substantive law and procedural law should be redefined in terms of primacy of substantive law and the supremacy of procedure. The supremacy of procedure is the practical way of securing the rule of law, for the law is ultimately to be found and applied in the decisions of the Courts in actual cases.

What has been happening in the law of procedure in New Zealand is important but hardly novel. It mirrors a trend which has been apparent in many jurisdictions, most notably England and Wales where there have recently been dramatic reforms of the system of civil justice. As far back as 1985 the Lord Chancellor appointed a review body on civil justice to seek improvements in the machinery of civil justice. Then in 1994, the Lord Chancellor appointed Lord Woolf to consider the system of civil procedure in order:

to improve access to justice and reduce the cost of litigation;

to reduce the complexity of the Rules in modernised terminology; and

to remove unnecessary distinctions of practice and procedure.

In June 1995, Lord Woolf published his interim report to the Lord Chancellor on the civil justice system in England and Wales. After much debate in England, the new rules came into force on 26 April 1999.

The process is ongoing in New Zealand. For example, the rules relating to expert witnesses are currently being looked at by the High Court Rules Committee and a discussion paper is shortly to be sent to the Law Society and other interested parties to enable the profession to have its say on whether these rules should be reformed and, if so, how. Again, this simply reflects what has been happening in Australia and England where there have been some concerns over the role of expert witnesses in litigation.

We emphasise that this is very much an introduction to the recent reforms in the High Court Rules. Because it is early days for these Rules, there is not a great deal of case law and thus the discussion is primarily on principles with some predictions as to the way in which the court will deal with the Rules as cases come before them.

Finally, at the end of the paper there is a short section dealing with some of the “live issues” in civil procedure in New Zealand today. Again, we have not attempted to cover all areas, but have concentrated on examples of some of the more important developments.

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